3.20 Judicial Referral Hearings

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

January 7, 2020

Table of Contents

1. Introduction

The enactment of Bill C-75 is a Parliamentary initiative to address delay in the justice system. One of the important aspects of Bill C-75 is the introduction of judicial referral hearings as a means of dealing with so-called administration of justice offences, which are offences committed against the integrity of the criminal justice system including alleged breaches of bail. The relevant sections of Bill C-75, which amend the Criminal Code to create judicial referral hearings, come into force on December 18, 2019.Footnote 1 The purpose of this Chapter is to provide an overview of the new provisions and guidance to prosecutors.

2. Overview of the Judicial Referral Hearing Regime

The new provisions in the Criminal Code allow the police or the Crown to direct administration of justice offences to a judicial referral hearing as an alternative to charging the accused with a new offence and resorting to s. 524 of the Code. Judicial referral hearings are available as long as the alleged administration of justice offence has not caused harm to a victim, which includes physical or emotional harm, property damage or economic loss. At a judicial referral hearing, the judge or justice will review any existing conditions of release and could decide to take no action, release the accused on new conditions or detain the accused, depending on the particular circumstances of the accused and the offence.

It is important to recognize that a judicial referral hearing is initiated when a prosecutor "seeks a decision" under s. 523.1(2) of the Criminal Code. The new procedure does not impact police powers in non-charge approval provinces relating to whether or not to lay charges. The provisions operate by enhancing police and prosecutorial discretion by allowing them to compel an accused to appear at a judicial referral hearing as an alternative to laying or pursing charges where appropriate, and when it is believed that an alleged breach should be brought to the attention of a justice or a judge.

A judicial referral hearing is essentially a review of the individual's bail status, and the conditions that were imposed when the accused was released after being charged with an earlier offence. Guilt or innocence with respect to the alleged administration of justice offence is not considered. The alleged administration of justice offence will not appear on the accused's criminal record. Any charges that have been laid regarding the administration of justice offence in question are dismissed by the judge or the justice once a decision is made with respect to the release status of the accused.Footnote 2

If an accused fails to attend a judicial referral hearing, they cannot be charged with an additional offence for failure to appear. The issue can be dropped, the accused can be offered another hearing, or the accused can be charged for the original breach that was to be addressed through the judicial referral hearing.

3. Background and Parliamentary Intent in Enacting The Regime

The overarching theme of Bill C-75 was to address delay within the justice system.Footnote 3

The focus on administration of justice offences arose in part from the Standing Senate Committee on Legal and Constitutional Affairs (Senate Committee) who conducted a sweeping year-long study on delay and released its final report in June 2017.Footnote 4 One focus of the Senate Committee study was so-called administration of justice offences. The most common of these offences include failing to comply with bail conditions, failing to appear in court and breaches of probation. The Senate study found that the number of individuals charged with administration of justice offences has been increasing, despite a consistent decrease in the volume and severity of other criminal offences in Canada.Footnote 5

Concern over the volume of administration of justice offences in the justice system led the Senate Committee to explore options as extreme as the decriminalization of these offences. However, in the end the Senate Committee settled on the followingFootnote 6:

Recommendation 33: "The committee recommends that the Minister of Justice prioritize the reduction of court time spent dealing with administration of justice offences and develop alternative means of dealing with such matters with the provinces and territories."

The creation of Judicial Referral Hearings represents the government's response to the Senate Committee recommendation. The intention is to change the way some administration of justice offences are processed in order to reduce the pressure they place on the criminal justice system and thereby reduce delay.Footnote 7 The goal of this approach is to allow for alternative and early resolution of minor breaches in an attempt to ensure that only reasonable and necessary conditions have been imposed. This approach is intended to be a more efficient alternative to laying a new criminal charge in response to a breach.Footnote 8

4. The Legislative Context in Which Judicial Referral Hearings Are Being Introduced

Bill C-75 made a number of other amendments and additions to the judicial interim release provisions in the Criminal Code which provide some context in which the judicial referral hearing should be interpreted.

First, the principle of restraint has been codified.Footnote 9 Primary consideration is to be given to the release of the accused "at the earliest reasonable opportunity and on the least onerous conditions …including conditions that are reasonably practicable for the accused to comply with…". The language used closely resembles that used by the Supreme Court of Canada in R. v. Antic.Footnote 10 In making a decision on release, s. 493.2 specifies that the justice or judge "shall give particular attention to the circumstances of Aboriginal accused," and "accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part."

Second, in keeping with the language used in s. 493.1, and "the ladder principle" set out in Antic, additional provisions were added to s. 515, further codifying the principle of restraint. For example:

  1. section 515(2.01) requires the prosecution to show cause why any less onerous form of release would be inadequate;
  2. section 515(2.02) provides that a promise to pay shall be favoured over a deposit of money provided the accused or surety has reasonably recoverable assets; and
  3. section 515(2.03) provides that a surety be required only if the justice is satisfied that this requirement is the least onerous form of release possible for the accused in the circumstances.

Third, the reference to the condition that an accused abstain from alcohol or drugs is no longer specifically listed as one of the conditions a peace officer may impose when releasing an accused. This is consistent with the language found in s. 493.1 that conditions should be "reasonably practicable for the accused to comply with." In order for a peace officer to impose such a condition, he or she would have to demonstrate that the condition was reasonable and necessary to ensure the safety and security of any victim of or witness to the offence.Footnote 11 A justice can presumably still impose such a condition using the general power to impose "any other reasonable conditions specified in the order that the justice considers desirable."Footnote 12

5. Overview of Crown Approach – Balancing Public Safety and Parliament's Intent

In deciding whether to pursue a judicial referral hearing, the Crown must consider the objectives of Parliament and balance them against the safety of the public and any victim of the alleged offence(s). The objectives of Parliament in making these amendments include: (1) decriminalizing non-compliance with bail conditions that is minor or 'technical' in nature and non-harmful to victims; (2) reducing the substantial burden that administration of justice offences place on the criminal justice system; and (3) providing a speedy process for amending release conditions to take into account the particular circumstances of the accused, including mental health issues, the existence of neurocognitive disorders such as fetal alcohol spectrum disorder (FASD), substance abuse disorders, and homelessness.Footnote 13

Ideally, release orders under s. 515 will have been fashioned, ab initio, to be reasonably capable of being respected, thus reducing the likelihood that a judicial referral hearing will be necessary. However, the circumstances of the accused may change over time, requiring a review of the original order and the accused's performance on bail.

In most cases, the existence or absence of physical or financial harm to a victim will be evident in the Crown brief, but it may be more difficult for prosecutors to assess whether a victim has suffered emotional harm because of an accused's failure to abide by release conditions. If this is not clear from the Crown Brief, the Crown's office should seek further investigation by police.

Where an accused has been issued an appearance notice to appear at a judicial referral hearing, or the prosecutor refers a charged breach to a judicial referral hearing, the prosecutor must consider the guidelines in Chapter 3.18 of the Deskbook which deal with Judicial Interim Release. The prosecutor should pay particular attention to any circumstances of the accused that have likely contributed to their failure or inability to comply with conditions as well as s. 493.2 of the Criminal Code where applicable.

6. How Will Judicial Referral Hearings Arise in Practice

Judicial referral hearings introduce a new Criminal Code process through which certain administration of justice offences may be resolved summarily without the need for an information to be sworn and without the necessity of a trial. Listed offences to which the new provisions apply consist of failing to comply with a summons, appearance notice, undertaking or release order; and failure to attend court as required. The process allows a judge or justice to review the reasonableness of bail or other release conditions and to take appropriate action in keeping with the overall intent of the related legislative changes as outlined above.Footnote 14

There are two pathways to the judicial referral hearing process. Peace officers have been given discretion to initiate the judicial referral hearing process. Pursuant to s. 496 of the Criminal Code, they may issue an appearance notice to a person to appear at a judicial referral hearing. The officer must have reasonable grounds to believe that a person has committed an administration of justice offence, and that the failure to comply or appear did not cause a victim "physical or emotional harm, property damage or economic loss."Footnote 15 Such an appearance notice is issued "without laying a charge," such that all that is under review at the hearing is the accused's status on judicial interim release for the original charge.

The second route to a judicial referral hearing is when an information has been sworn charging the accused with an administration of justice offence, and the Crown exercises a discretion to seek a judicial referral hearing as opposed to pursuing the charge and seeking recourse to s. 524 of the Code.

7. Jurisdiction

The jurisdiction for a justice or judge to hear and decide a judicial referral hearing is set out in s. 523.1 of the Criminal Code. If the administration of justice offence arises from a bail order of a superior court of criminal jurisdiction under subsection 522(3), it is that court that must hear the judicial referral hearingFootnote 16. Otherwise, the hearing may take place before a justice.Footnote 17

There is some uncertainty about the extent to which each province and territory will support the implementation of judicial referral hearings, for example, by creating dedicated courts where such hearings routinely take place. It is clear from the legislation, however, that where the prosecutor seeks a decision under s. 523.1(2) it is mandatory for the justice to conduct the matter in the context of a judicial referral hearing. Thus, the Crown should exercise its discretion in accordance with the will of Parliament, with due regard for the needs of public safety, and pursue judicial referral hearings where appropriate.

It should be noted that s. 523.1 does not include a legislative equivalent to s. 518(1) which allows a justice at a judicial interim release hearing to make inquiries "on oath or otherwise," and consider any evidence "considered credible or trustworthy." While the amendments creating judicial referral hearings do not specify an exact procedure or what kind of evidence is contemplated, the Crown should bear in mind that the objective of the legislation is to reduce the strain on court resources and reduce delay.Footnote 18

8. Pre-Conditions and Process

In order for a court to hold a judicial referral hearing, certain pre-conditions must be satisfied. First, a peace officer must have issued an appearance notice pursuant to s. 496, or a charge must have been laid. Second, the Crown must exercise its discretion to "seek a decision" under the judicial referral hearings.Footnote 19 If the conditions have been met, the purpose of the hearing is to inquire into whether the accused failed to comply with a bail order or failed to attend court, and if so to review the conditions of release.

If satisfied that an administration of justice offence occurred and did not cause a victim physical or emotional harm, property damage or economic loss, the judge or justice shall review the relevant conditions of release and exercise one of the following powers:

9. Consequences

Certain consequences flow automatically from the completion of a judicial referral hearing. When the court makes a decision at a judicial referral hearing, and a charge has been laid, the judge or justice "shall" dismiss the charge.Footnote 25 The focus at a judicial referral hearing is on whether the accused did or did not fail to comply with an order or failed to appear. There is no finding of guilt or innocence, and no criminal record arises from the administration of justice offence. If a judge makes a decision at a judicial referral hearing, no charges may be laid by information or indictment in relation to the failure to comply or appear that was the subject of the hearing.Footnote 26 As noted above, if the accused does not attend their judicial referral hearing pursuant to a s. 496 appearance notice to do so, they cannot be charged with the offence of failure to appear.Footnote 27 When this happens, the options are to drop the matter, offer the accused another hearing, or charge the accused for the breach that was to have been addressed by way of a judicial referral hearing.

10. Arrest (Section 495.1) and Cancelling Bail (Section 524)

Peace officers retain the power to arrest without warrant for the purposes of having an accused appear before a judge or justice pursuant to section 524 of the Code. Section 495.1 of the Criminal Code authorizes a peace officer to arrest an accused without warrant for the purposes of having the accused dealt with under s. 524. The officer must have reasonable grounds to believe that an accused has or is about to contravene a summons, appearance notice, undertaking or release order or reasonable grounds to believe the accused has committed an indictable offence while subject to a summons, appearance notice, undertaking or release order. This power of arrest was formerly set out in s. 524(2) of the Code and remains the mechanism by which an accused can be kept in custody for the purposes of a s. 524 application.

Section 524 of the Criminal Code has undergone some amendments, but remains a means by which the Crown may seek revocation of bail. The structure of section 524 is similar to the basic structure in s. 523.1 for judicial referral hearings.Footnote 28 However, there are important differences as well. Under s. 524(3) it is mandatory for a justice who finds that the accused contravened a bail order (or there were reasonable grounds to believe the accused committed an indictable offence while on bail) to cancel the order. Footnote 29 That in turn gives rise to a mandatory order that the accused be detained in custody, unless the accused shows cause why their detention in custody is not justified. Footnote 30 The judicial referral hearing thus provides a more flexible approach for dealing with alleged breaches of bail. The presiding justice may elect to do nothing, may change or modify the bail to prevent further breaches, and though they may detain the accused on the original charge, no reverse onus arises as a result of the alleged breach. It is thus important for the Crown to carefully consider whether to pursue a judicial referral hearing or a s. 524 hearing.

11. Exercise of Crown Discretion to Seek a Judicial Referral Hearing

As outlined above, judicial referral hearings are an alternative to charging the accused with an administration of justice offence. The discretion to "seek a hearing" rests with the Crown both when an appearance notice has been issued, and when a charge has been laid. As such, when deciding whether to seek a judicial referral hearing rather than proceeding by way of a charge for an administration of justice offence, the analysis requires the Crown to consider the decision to prosecute test. In this context, the Crown must consider the principles enumerated in Chapter 2.3 of the Deskbook with particular reference to the nature of the alleged offence.

In considering the public interest branch of the decision to prosecute, the Crown must consider the legislative intent in creating judicial referral hearings. In many cases, judicial referral hearings provide an opportunity to more effectively deal with failures to comply with conditions of release and failures to appear in court. In order to reduce delay, and increase the efficiency of the justice system, the Crown should resolve minor or technical breaches by means of a judicial referral hearing without the necessity of a charge.

In exercising the discretion to direct a judicial referral hearing, consideration should be given to how the offender's circumstances relate to the particular administration of justice offence at issue. For example, if the allegation is that the accused failed to appear, the existence of an underlying problem or condition of the accused, such as homelessness, substance abuse or mental disorder that affected or contributed to the failure to appear would be a relevant factor. Such considerations may inform the determination as to whether a prosecution or a judicial referral hearing is the best means of promoting future compliance with court orders.

Judicial referral hearings provide the Court with an opportunity to review existing conditions of release and are an extension of the bail process. Judicial referral hearings are intended to reduce administration of justice offences. As such, they are an opportunity for a tailored response to breaches that does not involve detention or new charges. The Crown should consider whether the principle of restraint is properly captured by the existing bail, and whether the accused is a member of an overrepresented population such as Indigenous persons. In all cases, the Crown must apply the principles related to judicial interim release outlined in Chapters 3.18 and 3.19 of the Deskbook when considering judicial referral hearings.

In some instances, it may be obvious that the conditions of release imposed on the accused cannot be complied with. For example, if a homeless person has a curfew as part of his or her conditions of release, it may be impossible for the accused to comply with that condition. In these circumstances, Crown counsel are encouraged to immediately exercise their discretion with respect to the administration of justice offence and seek to amend the conditions of release with the consent of the accused.

The fact that police have laid a charge for an administration of justice offence rather than issue an appearance notice may be a relevant factor to the exercise of Crown discretion, but is not determinative. It may be necessary to inquire of the police why an administration of justice offence was laid rather than a referral by police to a judicial referral hearing in the first instance. This further information may provide greater context for the Crown when exercising its discretion under the decision to prosecute test and deciding whether to continue the prosecution or seek a judicial referral hearing.

12. Relevant Factors That Should Be Considered

In deciding whether to seek a judicial referral hearing prosecutors should take all of the following factors into account:

It is important to recognize that despite the importance of resolving alleged breaches in an expeditious fashion, not every situation can be appropriately dealt with by way of judicial referral hearing. In appropriate cases, the Crown can and should continue to rely on s. 524 and seek a revocation of bail. The following are factors that will affect the Crown decision to seek revocation under s. 524(4) rather than by judicial referral hearing:

Crown counsel should also bear in mind that in some circumstances, revocation under s. 524(4) can used following a breach to consolidate bail orders, particularly where the accused is having difficulty complying with multiple, conflicting terms of release. While the section requires an accused to show cause why they should be released, the Crown may not oppose release depending on the circumstances.

13. Conclusion

Bill C-75 addresses the need to modernize and streamline the bail regime and enhance the effectiveness and efficiency of procedures. The result is the creation of a new and more flexible means of addressing alleged breaches of bail and reducing unnecessary delay. Judicial referral hearings should be used by the Crown where appropriate in order to give due recognition to the will of Parliament, and ensure the efficient use of court resources. Regional differences will arise in practice, particularly between charge approval provinces and non-charge approval provinces, but the existence of the hearings and the jurisdiction and powers of a justice at such a hearing are now clearly set out in the Criminal Code, and all Crown lawyers must be prepared to consider, and where appropriate, invoke the new procedures.

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